(LONG CAYE ASSOCIATES LIMITED
Action No. 30 of 1992
8th December, 1994
G. D. MEERABUX, J.
Courtenay and Mrs. D. Courtenay for the Plaintiffs.
Mr. C. Ramirez for the Defendants.
and Tenant - Lease - Whether breach of covenant to pay rent
- Whether breach of implied covenant not to prejudice, impugn
or dispute landlord's title - Whether obligation to serve
notices for breach of covenants - Whether forfeiture for
breaches - Arrears and mesne profits.
- Title - Trespass - Recovery of possession - Injunction -
U D G M E N T
claim against the First Defendant is for:-
recovery of possession of the land being the northern half
of the Caye known as Long Caye upon a forfeiture for nonpayment
of rent and for a breach of the condition implied in the
Deed of Lease dated the 28th June, 1968, made between Ralph
Jackson the predecessor in title of the plaintiffs of the
one part and the First Defendant of the other part not to
do anything to prejudice the Landlord's title;
arrears of rent due to the plaintiffs under the said Lease
and for mesne profits.
the First and Second Defendants for:
damages for wrongfully entering the Plaintiff's land and
removing the property of the Plaintiff's therefrom; and
an injunction restraining the First and Second Defendants
whether by themselves or by their servants or agents or
whosoever from entering upon the plaintiffs land without
their permission and from obstructing the plaintiffs' access
to the said Caye by their servants or agents.
filed on behalf of the defendants
denies any breach of covenant to pay rent;
denies any trespass and makes
no admissions on other matters raised.
deal with two matters which have arisen on these pleadings
before this Court:
By an amendment made on the 7th June, 1993, to the Statement
of Claim, a new para. 9 was substituted as follows:
sundry dates since the purchase of the said Caye by the
plaintiffs the first defendant has disputed the title of
the plaintiff to the said Caye."
has been no amendment in the defence filed dealing with
this specific issue raised in this para. 9. This issue has
not been denied nor challenged by the defendants and in
accordance with the Rules of Civil Procedure in these circumstances
the first defendant is deemed to have admitted this issue.
of the Supreme Court Rules sets out this matter quite clearly
shall not be sufficient for a defendant in his defence to
deny generally the grounds alleged by the Statement of Claim,
or for a plaintiff in his reply to deny generally the grounds
alleged in a defence by way of counterclaim, but each party
must deal specifically with each allegation of fact of which
he does not admit the truth, except damages."
return to this matter subsequently in my judgment in dealing
with this specific issue.
Para. 6 of the Defence states:
first defendant repeats paragraph 5 herein and says that
the said action was determined by the Supreme Court of Belize
and an appeal from said determination made to the Court
of Appeal, Belize, which determined the matter on the 4th
day of February, 1992."
does not state what determination was made by the Court of
Appeal and although I raised the matter at the commencement
of this trial no steps were taken to cure this omission. To
my mind having mentioned a determination of the Court of Appeal
of an action in the pleadings, it is incumbent on that party
to state what exactly the Court of Appeal determined and not
to leave the matter hanging in the air so to speak with no
indication, as to what the Court of Appeal in fact decided.
I will now examine the evidence before this Court.
witness for the plaintiff was Frederick James Dodd who stated
that he is one of the shareholders and director of Long Caye
Associates Ltd., that both Long Caye Associates Ltd. and Glovers
Reef Ltd. purchased Long Caye sometime in 1986 and produced
Certificates of Title, Exh. F.D.2 (Transfer of Title by Ralph
Jackson to Long Caye Associates Limited of the western portion
of Long Caye) and Exh. F.D.3 (Transfer of Title by Ralph Jackson
to Glovers Reef Limited of the eastern portion of Long Caye).
was a delay in the purchase of the Caye because he found out
that Gilbert Lomont had leased the northern portion of the
Caye as per exhibit Exh. F.D.1 (lease of 5 1/2 acres approximately
being the northern half of Long Caye) and had not exercised
the option to purchase the said Caye. After the Caye was purchased
he personally communicated with the Lomonts both orally and
in writing informing them of the purchase of the said Caye,
producing a copy of one of his letters Exh. F.D.5 (Letter
to Mr. & Mrs. Lomont dated the 8th October, 1986). The
Lomonts had not paid any rent to the Companies for approximately
Caye was purchased there were four or five shacks on the northern
end of the Island and on the southern portion was the home
of the previous owner (Mr. Jackson).
the Caye before it was purchased and noticed that the condition
of Mr. Jackson's house was in good condition, complete with
windows, doors, a deck around two sides of the house and a
water tank. However, after the Caye was purchased he went
back to the Caye and noticed that the house was deteriorating
and the doors and water tank were missing.
first visited the Caye after it was purchased he did not see
the Lomonts but saw them on subsequent visits. On the second
visit he arrived with 20 tourists on the southern leased portion
of the Caye where he was met by Mr. Lomont and two other persons
unknown and Mr. Lomont ordered him and the 20 tourists not
to get off the boat or he would order his dogs to attack them.
One of the unknown persons was carrying a machete and looked
threatening to Mr. Dodd and the tourists. He informed Mr.
Lomont that the southern portion of the Island was free for
his guests to go on but was met with extreme profanity. To
avoid a confrontation he asked the captain to take the boat
around to the extreme southern point of the Island where he
was again met by Mr. Lomont and his dogs who again shouted
profanities and ordered them to stay away from the Island.
They did not go ashore.
The second confrontation with the defendants on the Caye was
on or about January 18th, 1993. On that occasion he again
went to the very southern tip of the Island with approximately
six to eight tourists where he was met by Mrs. Lomont and
one of her daughters. Mrs. Lomont ordered him and his guests
off the Island but he refused to leave informing Mrs. Lomont
that he had rights to be on that southern part of the Island
when Mrs. Lomont became hysterical and used extreme profanities
at him and his guests. Mr. Lomont arrived a few minutes later
yelling obscenities and ordering him and his guests off the
confrontation with the Lomonts was in 1990 on South Water
Caye where he met Mrs. Lomont who told him that he would never
have the ability to go on Long Caye, that we were wasting
our money to legally gain access to Long Caye and that we
should sell the Caye to her for what we paid for it.
shareholders and directors had the same difficulties with
the Lomonts and to his knowledge the northern half of the
Caye where the Subdivision is on Exh. F.D.4 (rough sketch
plan) was the portion leased to the Lomonts and to his knowledge
the plaintiffs never gave permission to the Lomonts to go
on to the Southern half of the Caye which was not leased to
have repeatedly taken the plaintiff to Court without success;
have never offered to pay rent to the company; have never
shown any willingness to acknowledge the Companies as their
Landlords and their behaviour have been most humiliating and
debilitating to the company. The Company have suffered financial
loss as Tourist Operators having become aware of the Lomonts
behaviour have decided to forgo any interest in leasing the
crossexamination he said that during 198386 in his negotiations
with Mr. Jackson to purchase the Caye he was interested to
know which section of the Caye was leased and at no time did
Mr. Jackson physically point out to him on the ground which
section of the Caye was leased but some time later Mr. Jackson
and his lawyers determined which section of the Caye was leased.
He maintains that after the purchase price was paid for the
Caye he sent several letters to the Lomonts and spoke to them
orally but got no responses at all. He has had no discussions
with Mr. Lomont in regard to the boundary because Mr. Lomont
refuses to talk and to date the boundary has not been agreed.
Mr. Lomont has prevented the Government Surveyor going to
the northern part of the Caye to carry out any survey.
Exh. F.D.4. (Lomont's rough sketch plan) the witness stated
that there is a perpendicular line on the plan, one side is
the portion sold to Glovers Reef and the other side is the
portion sold to Long Caye, Ltd. He denies that the horizontal
line shows how the Caye is divided for the purpose of the
lease to the Lomonts and suggested because the agreement made
between Ralph Jackson and the Lomonts was to divide the Island
in half he did not wish to accept the Lomonts' plan (Exh.
F.D.4) indicating where the north was. He disagreed that the
schedule on the lease (Exh. F.D.1) corresponds to how the
horizontal line is drawn on the sketch plan (Exh. F.D.4).
He maintains that he and his guests were denied access to
the entire Island and not to the portion in the north of the
horizontal line. He denies that when the Caye was purchased
there was confusion as to the boundaries of the lease to the
Lomonts. The Lomonts have consistently refused to allow him
access to the lsland because they claim the entire Island
is theirs and further claimed that the sale to Glovers Reef
and Long Caye Ltd. were not good. He maintains that the purchase
was paid for the Caye in 1986 but he was not certain of the
date when Title was transferred but when shown Exh. F.D.2
(Title Deed) he admitted he saw the date January 1989 and
was unable to say why it took three years for the Transfer
of the Title.
witness for the plaintiffs was Jorge Rosado who testified
that he is familiar with Long Caye representing the owners
interest in the said Caye and has personally visited the Caye
on several occasions. When shown Exh. F.D.4 (Lomonts rough
sketch plan of Long Caye) he pointed out the northern portion
as, "the part running from the subdivision around to
other subdivision line" because some 13 to 14 years ago
when he visited the said Caye Mr. Ralph Jackson pointed out
to him the northern portion of the Caye telling him that the
northern portion was a restricted area occupied by the Lomonts.
He went to Long Caye on the 8th October, 1992 to put a caretaker
on the Southern portion of the Caye as instructed by the owners.
He was accompanied by two Police Officers for protection because
he feared harassment from the Lomonts and their fierce dogs.
He also had with him the proposed caretaker and the boatman.
They landed on the Southern portion of the Caye and were met
by Mr. Lomont's caretaker who was occupying Mr. Jackson's
house on the southern portion of the Island. He saw three
or four tents and some people around the area of Mr. Jackson's
house. He asked to see Mr. Lomont and was directed to the
other end of the Caye where he met Mrs. Lomont. He introduced
himself to Mrs. Lomont and informed her of the purpose of
his visit whereupon she told him inter alia that he, Mr. Dodd
and the other owners are not welcomed on the Island and he
must get off immediately. He refused to leave insisting on
the right to put a caretaker on the Southern portion of the
Island whereupon Mrs. Lomont told him "there is no southern
end of the Island, and that Mr. Fred Dodd and his partners
do not own the Island and that she had the lease for both
sides of the Island, North and South. He left the Island without
placing the caretaker on the southern portion to look into
the matter. At no time did he threaten Mrs. Lomont but rather
Mrs. Lomont screamed at him talking to him in a loud manner.
To his knowledge the plaintiff never gave permission to the
Lomonts or his guests to visit the southern portion of the
visited Long Caye on January 10th, 1993 with Mr. Fred Dodd
and about 20 students from the U.S.A. where they met Mr. &
Mrs. Lomont and children when they both cursed and screamed
at him. Mrs. Lomont called him a "shit head". Mr.
Lomont called him "a big ape" and that he wanted
no part of this insulting behaviour. Under cross-examination
he admitted he visited Long Caye on three occasions in 1993.
He admitted that on the visit on 8th October, 1992 the two
police officers carried one rifle and that a shot was fired
but he did not know who fired the shot but the Lomonts were
not there when the shot was fired. He maintained that he and
Mrs. Lomont argued about where was North and South.
Exh. F.D.4 (Lomonts rough sketch plan) he identified what
portion of the Caye was South and North and denied he was
repeating what the present owners said to him but rather he
was repeating what Mr. Ralph Jackson personally told him.
witness for the plaintiff was Mr. Ralph Jackson who stated
that he first owned Long Caye and leased one half of Long
Caye to Mr. Gilbert Lomont described in the Schedule to the
Lease as the "Northern Half" in Exh. F.D.1 (Lease
by Mr. Jackson to Mr. Gibert Lomont) which northern half he
pointed out to Mr. Lomont and both he and Mr. Lomont placed
some pegs and "said to this coconut tree" both
parties to the lease agreeing what was the northern and southern
half of the Caye. When shown Exh. F.D.4 (rough sketch plan)
pointed out what the northern and southern portion of the
Island. His house was on the Southern portion and he had no
buildings on the northern portion leased to the Lomonts. "Mr.
Lomont did not keep to his side of the Caye. He pulled out
the peg and moved it further down and built a house which
was on my side of the property." He pointed this out
to Mr. Lomont and told him he would pull down his house whereupon
Mr. Lomont said if he did so he would burn down his house
and abused him about his father, his mother and of his illegitimacy.
did not pay his rent on time and paid no rent for eight years.
He sought advise from his lawyers who did nothing. His relationship
with the Lomonts was not pleasant and he eventually sold the
Caye to Mr. Dodd. The house was in perfect condition at the
time of the sale but the house was now completely demolished
and the water tanks removed. Mr. Lomont knew that the Caye
was sold because his lawyer gave him the first option to purchase.
Mr. Lomont has not paid any rent after the Caye was sold.
crossexamination he stated that he leased the Caye to Mr.
Lomont about 1968 with an option to purchase and maintain
that the description in the schedule is the proper description
of the property leased. The 5½ acres leased to Mr.
Lomont was never surveyed but he and Mr. Lomont had both pegged
the area before the lease was signed. When shown Exh. F.D.4
(Lomonts rough sketch plan) he stated "it is impossible
to say where the peg was placed but it was more or less where
the black line mark is" but "the side marked the
Northern side is Mr. Lomont's side. It is the northern side
of the Island." He denied he sold the Caye before Mr.
Lomont exercised his option to purchase the lease. He denied
any dispute with Mr. Lomont within one month after the lease
was signed. He received mail from Mr. Lomont every year after
the Caye was sold in 1986 but the mail was returned to the
Post Office. He never wrote to Mr. Lomont informing him of
the sale of the Caye and had no knowledge that Mr. Lomont
had disputed the sale.
when shown Exh. F.D.4 (Lomont's rough sketch plan) he said
that the "black dotted line divided the Caye North and
South and was "what Mr. Lomont and I agreed was North
and South. Mr. Lomont never came to me and said that this
was not North and that was not South."
the case for the plaintiffs.
defendants Mr. Lomont stated that he leased a portion of Long
Caye from Mr. Jackson in 1968 Exh. F.D.1. (Lease) and that
the "Schedule was agreed between myself and Mr. Jackson."
To use his own words "We did agree that I will have North
portion and he will have the South portion" but he denied
that he and Mr. Jackson inserted a peg in the ground to indicate
the lease was signed he occupied an area of the Caye and invested
$100,000.00 U.S. However problems with Mr. Jackson arose in
1969 and eventually went to the Supreme Court.
Exh. F.D.4 (Lomont's rough sketch plan) he said "This
is a very inaccurate sketch plan of the Island. At the time
when I signed the lease my understanding since the lease read
North, the boundary had to be East to West the Northern portion
of the Caye. I have no knowledge of the exact portion of the
leased land because there never was a survey of the whole
Island. Looking at the sketch plan I have to occupy 5 ½
acres. Looking at the sketch plan the North portion is where
the lagoon is sited and the southern portion where the reef
is located and the imaginary line indicates the boundary.
Under the lease that is the portion which I occupied."
He learnt that Mr. Jackson had sold the Caye in 1989 but after
1989 Mr. Dodd never contacted him about the purchase of the
that Mr. Dodd had an interest in the Caye. He admitted he
spoke to Mr. Dodd at least twice. On the first occasion Mr.
Dodd came to the North side of the Island in a boat. He did
not allow him to land on the North Side but he don't believe
Mr. Dodd told him he was the owner of the Island neither did
he know that he had purchased the Caye. However, he can't
recall what year this was. Before he found out that the Island
was sold he tried to purchase it in 1980 and when he found
out that it was sold he continued to send money to Mr. Jackson
because he had the right of first refusal and had two pending
actions contesting the sale.
dealt with the case involving the option to purchase the lease
in March 1992 but he continued to send money to Mr. Jackson
because there was the other action still pending. When the
action was completed in March 1992, an injunction was obtained
against him in December 1992 trespassing on the other portion
of the Island belonging to Mr. Dodd but inspite of the injunction
he admitted preventing Mr. Dodd's agents from going on the
Island because he instructed his lawyer to file an appeal
against the injunction and was under the impression that the
appeal would stay the injunction and had no knowledge that
the appeal was abandoned. At that time, he had an option to
lease the other portion of the Island and the right of first
refusal. He is still in occupation of what he believed to
be a portion of Long Caye.
1984 he attempted to pay rent to Mr. Jackson. Mr. Jackson
refused all payments. He admitted receiving letters from Mr.
Fred Dodd from 1982 but no letter in 1986 (Exh. F.D.5) but
had no dealings with him. He learnt that Mr. Jackson had sold
the Caye in 1989 but had not spoken to Mr. Jackson since 1970.
After 1989 he denied that Mr. Dodd ever contacted him about
the purchase of the said Caye. He admitted speaking to Mr.
Dodd twice on the Caye.
first occasion Mr. Dodd came in his boat on the north side
of the Island and he did not want Mr. Dodd to come ashore
on the north side since he had leased the north side of the
Island. On that occasion he believed Mr. Dodd told him he
was the owner of the Island.
on resumption of the evidence in the afternoon the witness
stated that when he stopped Mr. Dodd from landing on the said
Caye did not know that he had purchased the Caye but he don't
remember what year this was. Before he found out that the
Island was sold he tried to purchase it in 1980, offering
$140,000.00 and again in 1986 offering $150,000.00. After
he found out that the Island was sold he continued to tender
money to Mr. Jackson because he had the right of first refusal
and had two pending actions contesting the sale. One of the
actions was completed in March 1992, but he continued to send
money because the other action was pending. Since the completion
of the action he received a letter from Mr. Courtenay instructing
him to cease trespassing on the remaining portion of the Island
but there was no demand of rent. Since the completion of this
action an injunction was obtained against him in December
1992 and he was aware of that portion of the Island that belonged
to Mr. Dodd on which he must not trespass, but admitted that
after that injunction he prevented Mr. Dodd's agents from
going on the Island because he instructed his attorney to
file an appeal against the said injunction and was under the
impression that an appeal would stay the injunction. He has
since learnt that the appeal was abandoned but since then
he has not prevented anyone from entering the other side of
the Island. Prior to the decision in 1992 he never recognized
the sale of the Island because of a pending action but after
the option was dealt with by the Court he is not aware that
the sale of the Caye is valid. He knows that the plaintiffs
are the registered owners of the Island and was prepared now
to tender the rent to them from October 1988. He has not paid
rent from October 1988 because he has an action pending disputing
the sale. He denied taking the vat and the doors and lumber
from Mr. Jackson's house.
crossexamination he stated that he knew of no peg placed
on the Caye to indicate his part of the Island but they had
agreed on a general area, not a definite boundary and there
was no need to establish specific boundary lines as he was
on the North side and Mr. Jackson on the South side. He is
not too sure if Mr. Jackson is on the North or South side
of the Caye. Formerly he was sure that it was on the South
side, he now believes that Jackson's house is on the North
Side but he don't know if it is on his side of the Caye until
the Island is surveyed. He now knows where the North is but
did not know it before the Survey. He admits that Mr. Jackson's
house is excluded from his leasehold.
Exh. F.D.4 (Lomonts rough sketch plan) he stated he is unable
to say where Mr. Jackson's house is located but it is possible
that Mr. Jackson's house is on the South side of the Caye.
He denies that the portion to the North of the dotted line
is the portion he leased and states that the sketch plan is
he has not built anything on the left side of the dotted line,
that is, Southern side. He denied inserting the dotted line
on the said Exh. F.D.4.
he went to Court in Action No. 96 of 1972 for nonpayment
of rent but although the judge was wrong he did not appeal.
He states that the ownership of Long Caye is in dispute. He
first knew that the Caye was sold in 1989 when he visited
the Registry and denied knowledge of the sale in 1986 but
when shown Order of Court dated 13th November, 1986 in Case
No. 291 of 1986, Gilbert Lomont and Ralph Jackson, which stated
that the application to restrain the sale is dismissed he
stated he does not remember those circumstances nor does he
recall paras. 4 and 5 of the Statement of Claim which indicated
that the Caye was sold in 1986. When shown Exh F.D.4 (Lomonts
rough sketch plan) he again maintained that it was unreliable
and totally unrelated but stated the line running across the
Island is the East West line and is the approximate boundary
of northern 5 ½ acres leased to the Lomonts pointing
out that the north part leased to him is above the line facing
the lagoon which might include Mr. Jackson's house.
he occupied the whole Island for 15 years except one acre
around Jackson's house from 1969 1984 and he exercised his
option in 1969 to lease the whole Island.
answers to the following questions put to him are to be
the option accepted
is the wrong question.
is required to execute a lease for the option. Mr. Jackson
did not execute any lease. In Court Acton No. 96 of 1972
the Court, held that he was not, entitled to the lease over
the other part of the Island.
shown Exh. F.D.4 (Lomonts rough sketch plan).
everything to the right of that black bold dotted line is
considered North, do you agree that every thing you have
represented on this sketch is on the right hand side of
the sketch plan.
do not know if the Northern half as shown on this sketch
is on the right hand side.
answers to other questions put to him are worthy of note.
is true that all of the erections built by the Lomonts is
on the right side of the sketch plan. I do not admit and
accept that the Plaintiffs are owners of the Caye. I dispute
their title to this land. I dispute that they are my landlords"
after the Court of Appeal decision last year I am still
disputing their right to ownership."
he refused Mr. Dodd and students access to the North 5 1/2
acres in 1992 and 1993 after the decision of the Court of
Appeal. He admits his caretaker and some of his guests occupied
Mr. Jackson's house without his permission. He admits Mr.
Jackson took him to Court to evict him for nonpayment of
rent. If this Court hold I must leave Long Caye I would appeal.
he maintained he is prepared to pay rent to the Landlords
while still disputing the validity of the sale; and again
admitted that he prevented Mr. Dodd from entering the injunction
issued against him.
witness was Gustavo Valentine Bautista, a licensed land surveyor,
with some 40 years experience. He testified that Exh. F.D.4
(rough sketch plan) is a rough sketch of Long Caye and that
"the northern portion would be the portion towards the
word 'Lagoon' and the southern portion would be the portion
going towards the word 'reef'. The bold dotted line would
indicate western and eastern portions.
to the shedule on Exh. F.D.1 it would be possible to determine
the boundary by surveying the entire Island and dividing it
cross-examination he admitted that in "his experience
as a surveyor in Belize there are many instances where parties
agree to divide land under what they consider to be North
and South and then when the land is surveyed it sometimes
turns out that geographic North and South is not the same
as to what the parties agree. It is the intent of the parties.
When shown Exh. F.D.4 (rough sketch plan)
see Mr. Jackson's old house. The house would be on the Northern
portion of the Caye this is depending on the parties determining
North and South using Geographic North and South. It is
possible that the parties might have agreed on a different
demarcation of North and South on the Caye not based on
the Geographic North and South."
this witness testified when again shown Exh. F.D.4 (Lomonts
rough sketch plan).
agree that what I described as the North half referred to
in the option (Exh. G.L.1) as a portion of the Southern
half - because of the horizontal line. Forgetting the horizontal
line then Mr. Jackson's house is on the Southern half of
the Caye. Mr. Jackson's house is on the North half of the
Caye according to the Geographic North and South. Looking
at the option to lease Exh. G.L.1 something is amiss
because Mr. Jackson is including his house as being on the
Southern half as well as Mr. Lomont.
shown Exh. F.D.4 (Lomonts rough sketch plan) and referred
to dotted lines
see no huts to the left of the dotted line."
refered to intersection of two lines on said Exh. F.D.4 and
see portion occupied by Lomont for 24 years. I also see
garbage pit. That would be on the southern portion of the
assumes that the dotted line demarcated North and South for
the parties I agree all the improvements by the Lomonts and
the garbage pit is to the right hand side of the line. If
what the parties agreed to in the lease was everything to
the right was the northern half of the Caye where improvements
have been made and where Mr. Jackson's house is, this dotted
line would make sense.
use the word amiss we mean something is not correct but they
have accepted it. In this particular case the orientation
is not correct. In other words I took North to be East and
after that when I find I am using this side but we accept
to the draft sketch plan Exh. F.D.A. the portion with the
houses. "If Mr. Jackson's house is on the Southern portion
then the Northern portion would be where the Lomonts houses
are. The dividing line would then be the heavy dotted line.
I agree that the free hand sketch of the Caye (Exh. F.D.4)
is a very good representation of the left side of the Caye.
of Lester Langdon is of no relevance to this case as an appraiser
and realtor with three days training in the U.S.A. - one day
per year and although working in Belize as a realtor since
1982 he admits he never visited Long Caye. I ruled that the
question of valuation of the Caye is not raised in the pleading
and furthermore he could not give a valuation of the Caye
which he had not seen.
important witness for the defence was Marsha Lomont, wife
of Gilbert Lomont. She testified that she and her husband
Gilbert Lomont have a partnership in a business on Long Caye
in which she is the secretary/accountant. She did not personally
receive any communication from Mr. Dodd that he had purchased
the said Caye nor did Mr. Dodd visit her personally after
purchasing the said Caye. In 1986 she had on the Northern
end of the Caye 15 cabins, including a restaurant, a camp
ground, a scuba dive shop, store room, boat house, employees
houses and a dock including 10 guest cabins. She denied removing
a water tank and lumber valued at $100.00 from the Southern
portion of the Caye nor a door from Mr. Jackson's house. She
denies she ordered dogs to attack Mr. Dodd and his tourists
and denied using profane language but admitted she met him
on 15th January, 1993 and asked him to leave her leasehold
property. She denied seeing Mr. Dodd and having any confrontation
with Mr. Dodd on Water Caye in 1990.
meeting Mr. Dodd and Mr. Jackson in 1986 and further denied
preventing surveyor Mr. Flowers from going to the Northern
portion of Long Caye. She admitted knowing Mr. Rosado and
further admitted that on 8th October, 1992 he visited Long
Caye accompanied by two Policemen but denied he showed her
any documents indicating that he was the servant or agent
of the plaintiffs and admitted that she told him to leave
her leasehold. She denied threatening or screaming at Mr.
Rosado nor abusing him. She is not aware of Mr. Jackson and
Mr. Lomont placing pegs on the Caye. As secretary/accountant
of the business rents have been paid to Mr. Jackson since
1984 but she is not aware of any demand for rent from the
Plaintiffs nor Mr. Dodd.
that if the injunction is granted she would lose approximately
U.S. $100,000.00 per annum in business.
that Exh. F.D.4 (rough sketch plan) is an exhibit attached
to her affidavit dated the 3rd December, 1992 and that it
is her drawing.
crossexamination she admits she is not a party to the lease
by Mr. Jackson. She maintained that she did not deny to Mr.
Dodd access to the Caye but admitted she did not know whether
Mr. Lomont prevented Mr. Dodd nor Mr. Flowers entry to the
Northern portion of the said Caye. She denied having any communication
with Mr. Dodd but admitted she spoke to him in January 1993.
she was present on Long Caye in 1968 when Mr. Jackson and
Mr. Lomont agreed on what portion of the Caye Mr. Lomont would
lease. She states that the last time Mr. Lomont paid rent
was this year rent paid both to Mr. Jackson and to the Courtenay
Courtenay sent a letter. To me it meant he received the
payment. The cheque was returned to me uncashed. The cheque
covered rent for the coming year 1993 1994. Rent has been
paid up to date. I have receipts for these rents payments.
Bank of Nova Scotia or Atlantic Bank and the Post Office
the case for the defence.
for the defendants submitted that-
claim for possession is inconsistent with a claim in the same
Writ for an injunction since it does not amount to an unequivocal
demand for possession as to operate as a final election by
the plaintiff to determine the lease and referred to the case
of Moore v Ullcoats Mining Co. Ltd 1908 1 C.H. 575
- Supreme Court Practice Vol. 1 - para. 18 -15 - 2 - 5th line;
for rent in para. 6 of particulars of claim are improper as
the plaintiff only obtained title to the land in 1989;
was no notice of new ownership to lessee in accordance with
S.14 (2)(b) of the Landlord and Tenant Act, Chapter 153;
evidence of any notice of any breach of covenant express or
implied communicated to the first defendant in accordance
with S. 15 (1) of the Landlord and Tenants Act supra;
evidence except hearsay in respect of claim for damages to
doors, vats and lumber;
dispute as to title is not a denial of the plaintiff's title
merely a dispute as to validity of sale;
evidence of trespass by the defendants.
for the Plaintiffs replied as follows that -
is evidence that the defendants trespassed on the Plaintiffs
is evidence that the defendant is in breach of covenant to
pay rent, that he failed to pay to the plaintiffs inspite
of having knowledge and notice since 1983 that they were the
new owners of the Caye, therefore forfeiture of the lease
arises for breach to pay rent, furthermore that the claim
for possession of an injunction are not inconsistent claims;
is evidence that the defendant disputed the plaintiff's title
to the land, which is a ground for forfeiture and which is
a breach of covenant implied in law.
v Sampson and another 1958 1 All E.R. 314 Halsbury Laws
4th Ed. Vol. 27 para. 424.
that no notice is required for such a breach and S.15 of
Landlord and Tenant Act supra is therefore not applicable
and no right of relief is possible;
relief from forfeiture for nonpayment of rent should be denied
in the special circumstances of this case because of the disputes
with the defendants and their behaviour since 1969.
I have to decide in this case are as follows:
the plaintiffs the registered proprietors of Long Caye;
the first named defendant the lessee of the northern portion
of the said Long Caye;
Has there been a breach of the covenant to pay rent by the
first defendant to the plaintiffs;
there been a breach of the implied covenant by the defendant
not to do anything to prejudice, impugn or dispute the plaintiffs'
title as landlord;
the defendants trespassed on the portion of the Caye not leased
to them and removed items from the plaintiff's property;
the plaintiffs under an obligation to serve notices on the
defendants for breaches of the covenants to pay rent and to
impugn and dispute their title;
Are the plaintiffs' entitled to forfeiture for breaches of
the covenant to pay rent and for impugning and disputing their
title to land;
Are the defendants entitled to relief against forfeiture for
breaches of the covenant to pay rent and not to impugn or
dispute the plaintiffs' title.
set out in great detail the evidence of the various relevant
witnesses in the case because of the attitude of the defendants
throughout this trial who did not trust my own note taking
of the evidence nor even that of their own counsel and who
brought into Court at some stage of the trial their own note
taker - an action without precent in the Courts of Belize
and elsewhere. If it was an attempt to annoy me or to frighten
me let me state now that I am not easily annoyed or frightened
and will not be deflected from doing my duty.
now deal with the first issue.
Are the plaintiffs the registered proprietors of Long Caye
that the Certificate of Title, Exhs. F.D.2 and F.D.3, shows
that the plaintiffs are the registered proprietors of Long
Caye and that the Transfer was dated January 5th, 1989.
next deal with the second issue.
Is the first named defendant lessee of the "northern"
portion of Long Caye
that Exh. F.D.1 (Lease by Mr. Jackson to Mr. Gilbert Lomont)
shows that the firstnamed defendant is a lessee of the "northern"
portion of Long Caye for a period of 35 years, with effect
from 1st July, 1968 at a yearly rental of $412.50.
that what is in dispute is whether this lease was in respect
of the geographic North and South. In determining this matter
I must examine the evidence of the parties to the lease and
the relevant evidence of any other witnesses.
of Mr. Jackson the former owner of Long Caye and who had leased
this "Northern portion of the Caye to the first-named
defendant is quite clear on this matter. He stated that both
he and Mr. Lomont on a visit to the Caye placed some pegs
on the ground and both agreed what was the northern and southern
portion of the Caye.
Exh. F.D.4 (rough sketch plan of the Caye) he said that "the
black dotted line divided the Caye North and South and was
"what Mr. Lomont and I agreed was North and South. Mr.
Lomont never came to me and said that this was not North and
that was not South."
evidence was that the schedule on the lease Exh. F.D.4 was
agreed between himself and Mr. Jackson, that he would have
the north portion and Mr. Jackson the south portion but denied
that pegs were placed on the ground to indicate the boundary
but "since the lease read north the boundary had to be
east to west", although he admitted he had "no knowledge
of the exact portion of the leased land because there was
never a survey on the whole Island."
Exh. F.D.4 (rough sketch plan of the Caye) he maintains that
it is an unreliable and inaccurate sketch of the Caye but
that the line running across the Island is the east west line
which is the approximate boundary and that the northern portion
leased to him is above this line facing the lagoon which might
include Mr. Jackson's house.
Exh. F.D.4 (rough sketch plan) what he stated in answer to
the question put to him in crossexamination is important.
If everything to the right of that black bold dotted line
is considered North, do you agree that everything you have
represented on this sketch is on the right hand side of
the sketch plan
do not know if the northern half as shown on this sketch
is on the right hand side."
is true that all the erections built by the Lomonts is on
the right side of the sketch plan."
when shown Exh. F.D.4 pointed out to the Court the northern
portion of the Caye as being on the right hand side of the
sketch plan because he stated that 13 to 14 years again when
he visited the Caye Mr. Jackson pointed out to him the northern
and southern portion of the Caye telling him that the northern
portion is being leased by the Lomonts.
the land surveyor stated that Exh. F.D.4 is a rough sketch
plan of Long Caye and that "the northern portion would
be the portion towards the word 'lagoon' and the southern
portion would be the portion towards the word 'reef'. The
bold dotted line indicated a western and eastern portion.
With reference to the schedule in Exh. F.D.1 it would be possible
to determine the boundary by surveying the entire Island and
divide it in half"
that Exh. F.D.4 (Lomonts rough sketch plan) is an exhibit
attached to an affidavit of Mrs. Lomont dated 3rd December,
1992, and filed an the 12th December, 1992 in this action
when the defendants sought to oppose an application for an
injunction and I note inserted on the said Exh. F.D.4 the
words "Portion occupied by Lomont for 24 years"
which is an admission that the Lomonts occupied that portion
of Long Caye where the cabins and garbage are located.
is always a question of fact whether a particular parcel
of land is or is not contained in the description of the
to find the true meaning of any relevant document reference
may be made to the recitals, Doe and White v. Osborne (1840)
4 Jur 941.
outside the deed is admissible to identify the particular
lands denoted by the words of the deed (Dublin and Kingstown
and Rly Co. v. Bradford (1857) 7 C.L.R. 57, 624; Lyle v Richards
(1866) L.R.1 H.L. 222 at 239) but not so as to contradict
plain language of description in the deed (Grigsby v Melville
(1973) 3 All E.R) 455' (1974 1 W.L.R 80 C.A).
in an instrument of grant, as elsewhere, are to be taken in
the sense which the common usage of mankind has applied to
them in reference to the context in which they are found,
and to the circumstances in which they are used. Lord v
Sydney Comrs. (1859) 12 MOO PLC 473 at p. 497. Halsbury Laws
4th Ed. Vol. 12 para. 1518 - last sentence in para. 1
and note 2.
Mr. Bautista's evidence that
his experience there are instances where parties agree to
divide land under what they consider to be North and South
and when the land is surveyed it sometimes turn out that the
geographic North and South is not the same as what the parties
decided. It is the intent of the parties;
the improvements by the Lomonts and the garbage pit is on
the right hand side of the line on Exh. F.D.4 and in adopting
the words of Mr. Bautista :
what the parties agreed to in the lease was everything to
the right was the Northern half of the Caye where the improvements
have been made and where Mr. Jackson's house is, this dotted
line would make sense."
accept the evidence of Mr. Jackson in this regard and disbelieve
the testimony of the defendants. I find that the physical
evidence of what improvements were carried out on Long Caye
supports Mr. Jackson's testimony that the parties agreed that
the half of the Caye as shown on Exh. F.D.4 (Lomonts rough
sketch plan) on the right side of the dotted line was the
portion leased to the defendants which was referred to as
the Northern half of the Caye in the lease (Exh. F.D.1) and
which in fact was not the geographic North and South since
no survey of the Caye was ever carried out.
find as a fact that the portion of Long Caye leased to the
Lomonts was not the geographic North and South but comprised
in the portion of land on the right hand side of the dotted
line of Exh. F.D.4. (Lomonts rough sketch plan).
now deal with the third issue-
Has there been a breach of covenant to pay rent by the firstnamed
defendant to the plaintiffs
in his evidence stated that the defendants have not paid rent
to the plaintiff for eight years inspite of communications
by him personally and by letters informing them of the new
No. 1 Mr. Lomont admitted that on an occasion when Mr. Dodd
visited the Caye he told him that he had purchased the said
Caye and after he discovered that the Caye was sold he continued
to send money to Mr. Jackson because he had the right of first
refusal and had two pending actions contesting the sale.
admits that the plaintiffs are the proprietors of the Caye
and that he has not paid rent from October 1988 but is now
prepared to pay the rent for the lease from that date.
from the defendant's (No. 1) own admission that he has failed
to pay the lease rental to the plaintiff from October 1988
inspite of his knowledge that they were the new proprietors
of the Caye and that this was a clear breach of the covenant
to pay rent.
consequential matters have to be determined in respect of
this failure to pay rent
Was Notice required that there was a change of proprietors
and that therefore payment of rent were to be tendered to
the new proprietors; and
The payment of the lease rent to Mr. Jackson
now deal with the first consequential matter
Was Notice required that there was a change of proprietors
and that therefore payment of rent were to be tendered to
the new proprietors
is quite clear that Notice of the new proprietors must be
sent to the lessee. Mr. Dodd's evidence is that he not only
spoke to the defendants informing them of the purchase of
Caye but also that he wrote several letters to them in this
regard including Exh. F.D.5. (letter intimating the sale of
admits receiving several letters from Mr. Dodd from 1982 and
I find it unbelievable that the letters received by Mr. Lomont
did not include Exh. F.D.5 (letter intimating the sale of
the Caye) nor any information about the sale of the Caye.
I take judicial notice of Action No. 291 of 1986, Gilbert
Lomont and Ralph Jackson, and supporting affidavits of Mr.
Lomont and his attorney in which Mr. Lomont applied for an
injunction to restrain the sale of the said Caye to the plaintiff.
Mr. Lomont admitted in his evidence that he knew the Caye
was sold when he checked in the Supreme Court Registry in
English and Empire Digest Vol. 20 1982Reissue under Caption
"Notice" in paras. 5229 and 5264 states as follows-
Obligation to give notice General Rule
rule of law when one is obliged to give notice to another
is this; when the thing lieth more in the knowledge of the
one than the other, and he cannot come to the knowledge
but by the means. But when one mail has reason to known
and doth as much as the other he is not bound to give notice
to that other party." (Holt C.J)
no matter how, or in what character acquired, is knowledge
for the purposes of notice; and if not forgotten at the
time in question, will bind the party in possession of such
knowledge, or those who, through him, would be affected
v Norton (1845) Res & Eq. Jud. 43 (Aus. )"
find as a fact that Mr. Lomont had knowledge and Notice of
the sale of the Caye and of the new proprietors.
Payment of the Lease rent to Mr. Jackson
Mr. Lomont knew of the sale of the Caye to the Plaintiffs
since 1986, I find it very strange indeed that he continued
to tender rent to Mr. Jackson who was no longer the proprietor
and not to the new landlords. It is trite law that the new
proprietors step into the shoes of the previous landlord and
can enforce payment of the rent as the previous landlord.
that the Plaintiffs are entitled to the payment of the rent
from the date of purchase in 1986.
Has there been a breach of the implied covenant by the defendants
not to do anything to impugn, prejudice and dispute the
plaintiffs' title as landlord
testified that the defendants have never acknowledged the
plaintiffs as their landlords and have unsuccessfully repeatedly
taken them to Court.
admitted that he instituted two actions contesting the sale
of the Caye, that he had knowledge of an injunction by the
Court forbidding him from trespassing on that portion of the
Caye not subject to his lease but inspite of this injunction
he admitted that he prevented Mr. Dodd's agents from going
on the Caye because he had instructed his attorney to appeal
that order and was under the impression that the appeal stayed
that what is the most damaging bit of evidence against the
defendants in respect of this issue, is this bit of testimony
under crossexamination which reads as follows:
do not admit and accept that the plaintiffs are owners of
the Caye. I dispute their title to this land. I dispute
that they are my landlords" and again "Even after
the Court of Appeal decision last year I am still disputing
their right to ownership."
quite clear to this Court from the lips of Mr. Lomont that
he not only disputes the plaintiff's title to the Caye but
further denied the order of the Supreme Court by admitting
that even after the decion of the Court of Appeal which dismissed
the appeal to set aside the injunction he refused access to
Mr. Dodd and the students to visit the Northern 5 ½
acres of the Caye. This is clearly an affront to the decisions
of the Supreme Court of Belize and shows utter contempt for
the laws of this country.
that it is quite clear from the evidence that the defendants
not only impugned and disputes the plaintiffs' title
to the Caye even at this trial but by denying access to Mr.
Dodd and the students even after the Court of Appeal dismissed
the application to set aside the injunction caused prejudice
to the plaintiffs and their business by refusing to permit
Mr. Dodd and his guests access to the said Caye; a very humiliating
and bitter experience indeed.
Have the defendants trespassed on that portion of the Caye
not leased to them and removed items off the Plaintiffs'
is quite clear in this regard. Mr. Lomont in his evidence
admitted that he occupied the whole Caye from 1969 1984
and that his caretaker and some of his guests occupied Mr.
Jackson's house without Mr. Jackson's permission. Surely Mr.
Jackson's house situated on the other portion of the Caye
did not form part of Mr. Lomont's leasehold.
I accept and believe the evidence of Mr. Dodd that after the
plaintiffs purchased the Caye Mr. Lomont was physically present
on the southern portion of the Caye and prevented Mr. Dodd
and his tourists from landing on the said southern portion
not leased to Mr. Lomont the last occasion was January 18th,
find that the defendants repeatedly trespassed on the plaintiffs
Are the plaintiffs under an obligation to serve notices
on the defendants for breaches of covenants to pay rent
and disputing their title to the property.
now deal with the breach of the covenants to pay rent. I have
already found as a fact that there was a breach of the covenant
to pay rent.
question I have to deal with is whether there must be a formal
demand for rent before the plaintiffs are entitled to forfeiture.
Laws 4th Ed. Vol. 27 para. 428 states as follows:
What amounts to re-entry. The terms of a proviso for
re-entry require that if the landlord elects to determine
the lease for a forfeiture he must do so by reentry, which
the landlord may effect by physically entering upon the
premises with the intention of determining the tenancy or
by the issue and service of proceedings for the recovery
of possession of the premises. In the case of forfeiture
for nonpayment of rent the landlord must first make formal
demand for payment, unless this requirement is dispensed
with by suitable words in the proviso, or by statute. Usually
the formal demand is expressly dispensed with by inserting
the words "whether formally demanded or not, and it
is dispensed with by statute in cases where half a year's
rent is in arrear and no sufficient distress can be found
upon the premises.
entry is not necessary in order to take advantage of the forfeiture.
When the cause of forfeiture is complete, the landlord may
bring an action to recover possession, and the bringing of
the action is equivalent to actual entry. If the writ contains
an unequivocal demand for possession, the service of the writ
operates as a final election to determine the term, whether
judgment is obtained or not.
ask myself if the requirement to make formal demand for payment
of rent is dispensed with in the lease.
Exh. F.D.1 (between Ralph Jackson and Gilbert Lomont in para.
5(c) states as follows:
if the rent hereby reserved or any part thereof shall remain
unpaid for 30 days after becoming payable (whether formally
demanded or not) or if any covenant on the lessee's part
herein contained shall not be observed or performed then
and in any case it shall be lawful for the lessor or any
person or persons authorized by him in that behalf at any
time thereafter to re-enter upon the said premises or any
part thereof in the name of the whole and thereupon the
term hereby created shall absolutely determine but without
prejudice at any right of action or remedy of the lessor
in respect of any antecedent breach of the covenants by
the lessee hereinbefore contained."
the above para. 5(c) by inserting the words whether formally
demanded or not" has expressly dispensed with the requirement
of a formal demand for rent and that therefore there is no
necessity for the plaintiffs to formally make a demand for
rent before taking steps for forfeiture.
now deal with the implied covenant not to dispute or impugn
the landlords' title to the said land.
was raised in para. 9 of the Statement of Claim as follows:-
sundry dates since the purchase of the said Caye by the
plaintiffs the first defendant has disputed the title of
the plaintiffs to the said Caye."
As I have
pointed out earlier I observed that the defence has not denied
or challenged this issue and in accordance with the Supreme
Court Rules I find that this issue is therefore admitted by
I must be satisfied on the law on this issue. Halsbury Laws
4th Ed. Vol. 27 para. 424 states:
Impugning landlord's title as ground of forfeiture. There
is implied in every lease a condition that the tenant is
not to do anything that may prejudice the landlord's title,
and that if this is done the landlord may re-enter for breach
of this implied condition. Thus it is a cause of forfeiture
if the tenant denies the landlord's title by alleging in
writing, or, in the case of a tenancy from year to year,
either in writing or orally, that the title to the land
is in himself or another, or if he assists a third person
to set up an adverse title, as where he acknowledges the
freehold title to be in him, or delivers the premises to
him in order to enable him to set up a title. In the case
of a tenancy from year to year, the effect of such a denial
of title is that the tenancy may be forthwith determined
by the landlord without notice to quit. However, it is a
question of fact what intention underlies the tenant's words
or actions, whether in fact he is definitely asserting a
title adverse to the landlord, or, as the case may be, intending
to enable somebody else to set up such a title. Thus it
is not sufficient that the tenant pays rent to a third person,
or does not at once acknowledge the landlord's title, or
refused to give up possession at a time when the landlord
has no right to claim it. A denial in a pleading does not
today give rise to forfeiture
find Warner v Sampson and Another (No. 2) (1958) 1 All
E.R. p. 314 very illuminating on this issue.
head notes of the case reads as follows:
an action for possession of premises comprised in a lease
on the ground of breaches of covenant, one of the defendants,
by her defence, had in effect denied the landlord's title
and judgment was given for the landlord on the ground that
this denial gave rise to a forfeiture. On an application
by the defendants, under S. 146(2) of the Law of Property
Act, 1925 for relief from forfeiture.
The defendants were not entitled to relief under S. 146(2)
of the Act of 1925, because forfeiture incurred by the defendants
arose by operation of law, and not under a proviso or stipulation
in a lease to which alone S. 146(2) extended.
already found that there is abundant evidence that defendants
have disputed the landlords' title since 1986 and I find that
the law is quite clear on this matter that impugning and disputing
a landlord's title is a ground of forfeiture of the lease.
that I must ask myself is whether the Plaintiff is under an
obligation to serve notice on the defendants for an implied
breach of covenant not to dispute or impugn the landlords
title to land.
of the Landlord and Tenants Act Chap. 153 stipulates that-
right of reentry or forfeiture under any covenant, proviso
or stipulation in a lease for a breach of any covenant or
condition in a lease shall not be enforceable by action
or otherwise unless and until the lessor serves on the lessee
specifying the particular breach complained of, and
if the breach is capable of remedy, requiring the lessee
to remedy the breach, and
in any case, requiring the lessee to make compensation in
money for the breach," etc.
this lease, Exh. F.D.1 contains no such covenant about disputing
the landlord's title.
the words of Ashworth J. in Warner v Sampson and Another
my judgment, this is not a forfeiture under any proviso
or stipulation in a lease; it is a forfeiture that arises
by operation of law."
find that there is no obligation on the part if the Plaintiffs
to serve any notice to this effect on the defendants.
Are the plaintiffs entitled to forfeiture for breaches of
the covenant to pay rent and for impugning and disputing
their title to land
that for the breaches of the covenant to pay rent and to dispute
or impugn the plaintiffs title, the plaintiffs are entitled
to forfeiture of the lease.
Finally, are the defendants entitled to relief against forfeiture
for breaches of
the covenant to pay rent, and
the implied covenant not to impugn or dispute the plaintiffs'
Laws 4th Ed. Vol. 27 para. 442 states as follows
RELIEF AGAINST FORFEITURE FOR NONPAYMENT OF RENT 442. Right
to relief against forfeiture for nonpayment of rent.
The proviso for reentry on nonpayment of rent is regarded
in equity as merely a security for the rent, and accordingly,
provided the landlord and other persons intereoted call
be put in the same position as before, the tenailt is entitled
to be relieved against the forfeiture oil payment of the
rent and any expenses to which the landlord has been put.
Save ill exceptional circumstances, therefore, relief will
be granted on payment of the rent in arrear, and, moreover,
save in exceptional circumstances, the court will grant
relief on payment of arrears of rent and costs and will
disregard other breaches of covenant.
This right to relief has been recognized, and restricted
as to time, by statute. If the landlord has brought an action
to recover possession, then at any time before trial, and
providing the rent is six months in arrears, the tenant
or his assigns may pay or tender to the landlord, or pay
into court, all the rent in arrear, together with costs;
thereupon all further proceedings are stayed, and the tenant
or his assigns hold the demised land under the lease, without
any new lease. After trial and judgment for recovery of
possession the tenant is still entitled to relief, but he
must apply within six months from the date when the judgment
was executed; after the time he is barred from relief. However,
if he applies in time and obtains relief he holds tile demised
land according to the original lease, without any new lease.
A person who has acquired title as against the tenant by
adverse possession has no right to apply for relief. Where
tile landlord has reentered peaceably without bringing
proceedings, the statutory six months' timelimit for an
application for relief does not apply and the court may
grant relief under its equitable jurisdiction outside that
limit. The jurisdiction is exercised by the High Court;
and where the landlord seeks summary judgment, the tenant's
right to relief remains unaffected. Special provisions apply
where the landlord is proceeding in a country court to forfeit
the lease for nonpayment of rent.
trite law that the Court has a discretion to grant relief
against forfeiture of a lease. I find that in so doing the
Court's discretion is unfettered save that it must be exercised
judicially and having regard to all the circumstances. Egerton
v Esplanade Hotels London Ltd. 1947 2 All E.R. 88.
whether or not to grant relief the Court must take into account
not only the conduct of the tenant and the gravity of the
breach but also the value of the property forfeited. (Cremin
v Barjack Properties Ltd. 273 Estates Gazette 299, C.A.)
I am mindful
of some of the considerations influencing the Court as set
out in (Ropemaker Properties Ltd. v. Noonhaven Ltd. (1989)
2 E.G.L.R. (1989) 34 E.G. 39.
conduct of the defendants
I find that since the commencement of the Lease in 1968
there were problems with the previous landlord Mr. Jackson
and the defendants concerning the payment of rent and trespassing
over that portion of the land not leased to them.
regard I believe and accept Mr. Jackson's evidence.
further confirmed in this finding by taking Judicial notice
of Case No. 96 of 1972 between Ralph Jackson and Gilbert
Lomont the defendant No. 1 in which the learned Chief
Justice Moe made these findings of fact in that judgment.
I further find that the defendant No. 1 in dealing with
the Plaintiff in this case has persisted in this continued
breaches of the lease experienced by Mr. Jackson, that is,
non-payment of rent and continued trespassing over that
portion of the Caye not leased to him.
find that the defendant No. 1 is a "bad tenant."
I further find that the defendants behaviour and attitude
in disobeying an order of the Supreme Court prohibiting
them from refusing the Plaintiff's agent, Mr. Dodd access
to the Southern portion was contemptuous of the Courts and
laws of this country and arrogance of the highest order.
his outburst in Court in his evidence when crossexamined
about the said case No. 96 of 1972 Jackson v Lomont
supra in which he said
judge was wrong. I did not appeal" and again "Even
after the Court of Appeal decision last year I am still
disputing their right to ownership" and again "If
this Court says I must come off Long Caye I would appeal"
contempt for our judicial process and the judges of this Country.
I find that his "sacking" of his attorneyatlaw
during the course of this trial when he refused to take
the legal advise of his attorney an incident without precedent
in this country, also displays utter contempt for lawyers'
advise in Belize.
I find that the defendants are complete strangers to the
truth. Their prevarication, reluctance and hesitancy in
answers to questions put to them and denial of Exh. F.D.4
(Lomont's rough sketch plan) used as an exhibit in affidavit
sworn to by defendant No. 2 on the 3rd of December, 1992
used by the defendants against an application for injunction
brought by the plaintiff in this action confirms my view
that their evidence cannot be believed and relied upon by
of the breach
I find that the defendants have paid no rent since 1986
to the present time;
I further believe and accept Mr. Dodd's evidence that he
experienced two confrontations with the defendants when
he and his 20 tourists were prevented from visiting the
"southern" portion of the Caye by threats of dogs
to attack them one of the defendants party had a machete
and extreme profanities were hurled at the party by the
defendant No. 1.
when Mr. Dodd and a party of eight persons were prevented
from going on the Caye by the profanities and hysterical
behaviour of defendant No. 2 inspite of the Order of the
Court is a contempt of the Court.
doing the acts of the defendants are likely to destroy the
young fledgling tourist industry Belize is endeavouring to
cultivate by giving Belize a bad name.
their refusal to obey an injunction granted by this Court
as I have said before shows utter contempt for the laws and
judges of this country.
that the defendants behaviour in this matter places them beyond
the pale of civilized behaviour and not worthy tenants of
the Plaintiffs and any other person.
their continued presence as unworthy tenants will without
a shadow of a doubt lead to an even more frightening confrontation
including loss of life.
Value of the huts erected by the defendants
is no evidence of what estimate or value to be placed on the
huts erected by the defendants.
above reasons I refuse to grant any relief against forfeiture
of the lease.
now deal with the claim for damages.
v Vivian (1871) L.R.6 CH. App. 742. Lindley L.J. in dealing
with a case of trespass to land and the normal measure of
plaintiffs have been injured in two respects. First, they
have had the value of their land diminished. Secondly, they
have lost the use of their land and the defendants have
had it for their own benefit. It is unjust to leave out
of sight the use which the defendants have made and that
lies at the bottom of what are called the way leave cases."
already found as a fact that the defendants have repeatedly
trespassed on the plaintiffs' property. However, I find that
there is no clear evidence that the defendants removed any
items of property belonging to the Plaintiffs.
find that in preventing Mr. Dodd and his visitors to the Caye
on two separate occasions inspite of the injunction restraining
the defendants not to do so, must have caused some financial
loss to the Plaintiffs.
I find that there was no evidence led as to what financial
loss the plaintiffs suffered and the Court cannot speculate
on this matter.
will therefore be nominal which I set at $500.00.
I must deal with the issue as to whether a claim for possession
is inconsistent with a claim in the same Writ for an injunction.
answer to this issue raised is that the past conduct of the
defendants over the years in persisting with breaches of the
lease and refusing to comply with orders of the Court compels
the plaintiffs with justification not only to claim possession
but also to seek an injunction restraining them from entering
upon the plaintiffs' land and from denying thein access to
judgment for the plaintiffs-
Possession of Long Caye with effect from December 31st,
Mesne profits of $2,475.00 to the date of the service of
Mesne profits from date of service of Writ until possession
is delivered to the plaintiff;
An injunction restraining both defendants by themselves,
their servants or agents or otherwise howsoever from entering
upon Plaintiffs lands and from denying the Plaintiff's access
to an enjoyment of their land;
Damages at $500.00;
Costs to be taxed or agreed